Citation Nr: 9808734
Decision Date: 03/24/98 Archive Date: 04/14/98
DOCKET NO. 95-22 972 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for allergies and a
respiratory condition.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to service connection for Meniere’s disease.
4. Entitlement to service connection for scoliosis of the
thoracic spine.
5. Entitlement to service connection for arthritis of the
thoracic and lumbar spine.
6. Entitlement to service connection for residuals of
exposure to Agent Orange.
7. Entitlement to service connection for migraine
equivalence.
8. Entitlement to an increased rating for degenerative disc
disease and traumatic arthritis of the cervical spine,
currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
November 1976.
This appeal arises from an April 1995 rating decision of the
St. Petersburg, Florida, Regional Office (RO). In that
decision, the RO found that new and material evidence had not
been submitted to reopen a previously denied claim for
allergies and respiratory conditions. Also in that decision,
the RO denied a claim for an increased rating for disability
of the cervical spine, and denied claims for service
connection for PTSD, Meniere’s disease, scoliosis of the
thoracic spine, arthritis of the back, exposure to Agent
Orange, and migraine equivalence.
Several of the issues in this appeal will be addressed in a
REMAND that follows the decision on the other issues on
appeal. They include: the appeal to reopen a previously
denied claim for allergies and respiratory conditions, the
appeal for service connection for PTSD, certain aspects of
the appeal for service connection for residuals of exposure
to Agent Orange, and the appeal for service connection for
migraine equivalence.
In correspondence dated in December 1996, the veteran
appeared to express disagreement with a December 1996 rating
decision, in which the RO denied the veteran’s claims for
service connection for the following conditions: a pilonidal
dimple birth defect of the veteran’s child, claimed as a
result of exposure to herbicides; peripheral neuropathy,
claimed as secondary to herbicide exposure; thoracic
compression; lumbar compression; compressive neuropathy;
calcification on a kidney; retention cyst on the left wall of
the antrum; hemorrhoids; deviated nasal septum; and high
frequency sensorineural hearing loss.
The RO has not yet addressed the veteran’s appeal of the
December 1996 rating decision. The claims denied in that
decision are not inextricably intertwined with the current
appeal. The veteran’s expression of disagreement with the
December 1996 rating decision is referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has Meniere’s disease that began
during service, and that was caused by extensive, close range
exposure to artillery noise. He asserts that for several
years the symptoms were made less obvious by antihistamines
that he took for allergies. The veteran also contends that
he has scoliosis of the thoracic spine, and arthritis of the
back, that began during service.
The veteran contends that he was exposed to Agent Orange
during service, and that, as a result, he developed general
malaise, nervousness, weakness, fatigue, loss of appetite,
weight loss, insomnia, narcolepsy, diminished sex drive,
diminished memory, diminished concentration, organic mental
disease, back disorders, tingling and numbness in his upper
and lower extremities, muscle spasms, muscle cramps, severe
headaches, degenerative disc disease, respiratory problems,
pneumonia, allergies, a rash on his neck, and the loss of his
teeth. He also asserts that his exposure to Agent Orange
caused his wife to have two miscarriages, and his daughter to
have a birth defect at the base of her spine.
Finally, the veteran contends that a higher rating is
warranted for his cervical spine disability. He asserts that
he has constant pain in his upper back and neck, limitation
of motion, and pain, numbness and tingling in his upper
extremities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the claims for service
connection for Meniere’s disease, and for arthritis of the
back, are not well grounded claims. It is also the decision
of the Board that the record supports service connection for
scoliosis of the thoracic spine.
It is further the decision of the Board that the claim for
service connection for general malaise, nervousness,
weakness, fatigue, loss of appetite, weight loss, insomnia,
narcolepsy, diminished sex drive, diminished memory,
diminished concentration, organic mental disease, back
disorders, tingling and numbness in his upper and lower
extremities, muscle spasms, muscle cramps, severe headaches,
degenerative disc disease, respiratory problems, pneumonia,
allergies, the loss of his teeth, and his wife’s
miscarriages, all claimed as secondary to herbicide exposure,
is not a well grounded claim.
Finally, it is the decision of the Board that the record
supports a 20 percent disability rating for degenerative disc
disease and arthritis of the cervical spine.
FINDINGS OF FACT
1. The veteran submitted a timely notice of disagreement
with a September 1977 rating decision that denied service
connection for allergies and respiratory disorders.
2. The veteran has not submitted competent, medical evidence
of a nexus between his Meniere’s disease and noise exposure
or other events during service.
3. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal for service
connection for scoliosis of the thoracic spine.
4. Scoliosis of the thoracic spine was shown by x-ray both
during and after service.
5. The veteran has not submitted competent, medical evidence
of a nexus between arthritis of the back (including the
thoracic and lumbosacral spine) and disease or injury during
service.
6. The veteran has not submitted competent, medical evidence
of a nexus between herbicide exposure during service and the
following conditions: general malaise, nervousness, weakness,
fatigue, loss of appetite, weight loss, insomnia, narcolepsy,
diminished sex drive, diminished memory, diminished
concentration, organic mental disease, back disorders,
tingling and numbness in his upper and lower extremities,
muscle spasms, muscle cramps, severe headaches, degenerative
disc disease, respiratory problems, pneumonia, allergies, the
loss of his teeth, and his wife’s miscarriages.
7. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal for an
increased rating for a cervical spine disability.
8. Degenerative disc disease and traumatic arthritis of the
cervical spine are currently manifested by moderate
limitation of motion, and episodes of pain, numbness, and
tingling in the upper extremities.
CONCLUSIONS OF LAW
1. The September 1977 rating decision denying service
connection for allergies and respiratory disorders did not
become a final decision. 38 U.S.C.A. § 7105 (West 1991).
2. The claim for service connection for Meniere’s disease is
not well grounded. 38 U.S.C.A. § 5107 (West 1991).
3. Scoliosis of the thoracic spine was incurred in service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1996).
4. The claim for service connection for arthritis of the
back (including the thoracic and lumbosacral spine) is not
well grounded. 38 U.S.C.A. § 5107 (West 1991).
5. The claim for service connection for general malaise,
nervousness, weakness, fatigue, loss of appetite, weight
loss, insomnia, narcolepsy, diminished sex drive, diminished
memory, diminished concentration, organic mental disease,
back disorders, tingling and numbness in the upper and lower
extremities, muscle spasms, muscle cramps, severe headaches,
degenerative disc disease, respiratory problems, pneumonia,
allergies, the loss of the veteran’s teeth, and his wife’s
miscarriages, all claimed as secondary to herbicide exposure,
is not a well grounded claim. 38 U.S.C.A. § 5107 (West
1991).
6. The criteria for a 20 percent disability rating for
degenerative disc disease and traumatic arthritis of the
cervical spine have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41,
4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5290, 5293
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Meniere’s Disease
The veteran is seeking service connection for Meniere’s
disease. Service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1996). A person who submits a
claim for veteran's benefits has the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107(a) (West 1991). The United States Court of
Veterans Appeals (Court) has defined a well grounded claim as
a plausible claim; one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). When a veteran has presented a well grounded
claim within the meaning of 38 U.S.C.A. § 5107(a) (West
1991), the Department of Veterans Affairs (VA) has a duty to
assist the veteran in the development of his claim.
38 U.S.C.A. § 5107(a) (West 1991).
In Caluza v. Brown, 7 Vet.App. 498 (1995), the Court set out
three requirements that must be met in order for a claim of
service connection to be considered well grounded. First,
there must be competent evidence of a current disability (a
medical diagnosis). Second, there must be competent evidence
of incurrence or aggravation of a disease or injury in
service (lay or medical evidence). Third, there must be
competent evidence of a nexus between the injury or disease
in service and the current disability (medical evidence).
The third requirement can be satisfied by a statutory
presumption that certain diseases that manifest within
certain prescribed periods are related to service. Caluza,
at 506.
Meniere’s disease was listed as a diagnosis in some VA
outpatient treatment records from 1994 forward. The
veteran’s service medical records do not contain a diagnosis
of Meniere’s disease. Records of audiological testing during
the veteran’s service revealed some decrease in hearing at
high frequencies. The service medical records contain no
complaints, however, of tinnitus, vertigo, dizziness, or
other symptoms of Meniere’s disease.
VA outpatient treatment records from May 1990 noted that the
veteran reported that extension, or bending backward, of his
cervical spine caused dizziness. In VA outpatient treatment
records from 1992 and 1993, the veteran reported that for the
previous two years he had had episodes marked by dizziness,
ringing of the ears, vision changes, and sweating. In
statements supporting his claim, the veteran argued that his
Meniere’s disease began during service, but that it was not
identified until later because antihistamines, which he took
for allergies, also treated the symptoms of his Meniere’s
disease. He stated that his Meniere’s disease symptoms
became apparent after a decrease in the amount of
antihistamines he took. He asserted that extensive exposure
to artillery noise during service had caused his Meniere’s
disease.
While there is evidence that the veteran currently has
Meniere’s disease, medical records did not show symptoms of
the disorder during service, or until several years after
service. The veteran has provided an explanation of the
service-related cause of his Meniere’s disease, and the
reason why the symptoms were not observed until several years
after service. The claim that his Meniere’s disease began
during service, however, is supported only by the veteran’s
own assertion. No physician has stated that there is a
connection between his Meniere’s disease and noise exposure
during service. In Espiritu v. Derwinski, 2 Vet.App. 492
(1992), the Court explained that the testimony of a lay
person, without medical training, cannot constitute medical
evidence of causation or diagnosis, because a lay person is
not competent to offer medical opinions.
In the absence of medical evidence of a nexus between injury
or disease in service and the current Meniere’s disease, the
evidence submitted thus far does not meet the third of the
three requirement for a well grounded claim for service
connection that were outlined by the Court in Caluza, supra,
at 506. As the claim for service connection for Meniere’s
disease is not well grounded, it must be denied.
Scoliosis of the Thoracic Spine
The veteran is seeking service connection for scoliosis of
his thoracic spine. His claim is addressed by evidence in
both service and VA medical records of scoliosis of the
thoracic spine. The Board finds that this evidence is
sufficient to create a well grounded claim on that issue. We
are also satisfied that all facts relevant to the veteran's
claim have been properly developed, so that VA has satisfied
its statutory obligation to assist the veteran in the
development of his claim.
No spine disorder or defect was noted when the veteran was
examined for entry into service. His service medical records
indicate that he was treated in service for muscle strain,
muscle spasms, and radiculopathy in his upper back. He is
service connected for degenerative disc disease and traumatic
arthritis of the cervical spine. In 1972, x-rays of the
cervical spine and upper thoracic spine revealed no
significant abnormalities. Outpatient treatment records from
May 1974 noted muscle spasm in the cervical spine area, and a
slight lateral curve secondary to the spasm. In 1976, x-rays
of the cervical spine and upper thoracic spine revealed
sigmoid scoliosis of the upper thoracic spine. Muscle spasms
in the thoracic spine are were also noted in 1976.
On VA examination in July 1977, x-rays revealed a mild
scoliosis convexity in the thoracic spine. In subsequent VA
outpatient treatment records, the veteran reported pain in
the cervical spine and thoracic spine areas. In April 1994,
Ed Barker, D.C., a private chiropractor who treated the
veteran for several years, included thoracic neuritis-
radiculitis among his diagnostic impressions. VA outpatient
treatment records from 1996 noted possible thoracic outlet
syndrome.
The medical evidence indicates that the veteran has thoracic
spine scoliosis that was first noted during service. The
scoliosis was also found on VA examination after service.
There is no evidence that separates the condition during
service from the condition still found to exist after
service. The record supports, and the Board grants, service
connection for scoliosis of the thoracic spine.
Arthritis of the Back
The veteran is seeking service connection for arthritis of
the back. He is already service connected for arthritis of
the cervical spine. Therefore, the Board will construe his
claim as a claim for service connection for arthritis in the
remaining areas of the back: the thoracic spine and the
lumbosacral spine. In the case of certain chronic diseases,
including arthritis, service connection may be presumed if
the disease became manifest to a degree of 10 percent
disabling or more within one year after separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 &
Supp. 1997); 38 C.F.R. §§ 3.307, 3.309 (1996).
The veteran’s service medical records included numerous
records of outpatient treatment for back pain. On most
occasions, the veteran described pain in the neck and upper
back. A few records referred to back pain, without
specifying which areas of the back were affected. On one
occasion, in August 1976, the veteran reported low back pain
as well as neck and shoulder pain. The examiner noted a full
range of motion of all areas of the spine. No thoracic or
lumbosacral x-rays were taken. X-rays of the upper thoracic
spine, taken in 1976, revealed sigmoid scoliosis; but no
arthritis was noted.
In July 1985, the veteran wrote that he had recently begun to
have numbness, pain, and tingling in his lower back and
buttocks. VA outpatient treatment notes indicated that the
veteran was seen for chronic low back pain on various
occasions from 1989 forward. In 1990, examiners noted
restriction of motion of the lumbar spine. In May 1990, the
examiner’s assessment was degenerative joint disease of the
lumbar spine.
On VA examination in January 1994, the veteran reported that
he had pain throughout his entire back. X-rays of the
cervical spine and lumbar spine revealed osteoarthritis in
both areas. The examiner’s impression was degenerative disc
disease of the cervical spine, and minimal osteoarthritis of
the lumbar spine. In addition, a report describing chest
x-rays noted minimal osteoarthritic changes in the thoracic
spine.
There is medical evidence that the veteran had scoliosis and
muscle spasms of the thoracic spine during service; but
arthritis was not diagnosed during service. There is no
record indicating that arthritis became manifest in his
thoracic spine within one year after his separation from
service in November 1976. Arthritis of thoracic spine was
first shown on x-ray in 1994, many years after the veteran’s
service. Similarly, the veteran complained during service of
low back pain, but no lumbar spine arthritis was diagnosed or
shown on x-ray during service or within a year following
service. The earliest diagnosis of lumbar spine arthritis
was in 1990; and x-rays consistent with that diagnosis were
taken in 1994.
There is a separation of many years between the veteran’s
service and the eventual development of arthritis in the
thoracic and lumbosacral spine. No medical professional has
indicated that there is a link between the veteran’s service
and the current arthritis in those areas. In the absence of
competent medical evidence of a nexus between service and the
current disability, the claim for service connection does not
meet the Court’s requirements for a well grounded claim. See
Caluza, supra, at 506. The Board finds that the claim for
service connection arthritis of the back (thoracic and
lumbosacral spine) is not well grounded, and must be denied.
Exposure to Agent Orange
The veteran is seeking service connection for exposure to
Agent Orange. VA does not grant service connection for
exposure to a substance; rather, VA grants service connection
for disabilities, which can include disabilities caused by
exposure to a substance. See 38 U.S.C.A. §§ 1110, 1131
(West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1996). When
certain specified diseases develop after exposure to an
herbicide agent, such as Agent Orange, during service,
regulations allow for service connection to be presumed, even
when a disability is not shown to have been present during
service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1997). The
disorders for which service connection may be presumed based
on herbicide exposure include certain skin disorders,
specified types of cancer, and acute and subacute peripheral
neuropathy. 38 C.F.R. § 3.309(e) (1997).
A veteran who has had active service in the Republic of
Vietnam during the Vietnam era, and who has any of the
diseases listed in the regulation regarding presumptive
service connection, shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 C.F.R.
§ 3.307(a)(6)(iii) (1997).
The veteran has reported a number of conditions and symptoms
that he believes were caused by exposure to Agent Orange. He
reported that since his service in Vietnam or shortly
thereafter, he has experienced general malaise, nervousness,
weakness, fatigue, loss of appetite, weight loss, insomnia,
narcolepsy, diminished sex drive, diminished memory,
diminished concentration, and organic mental disease. He
reported that he has developed back disorders, tingling and
numbness in his upper and lower extremities, muscle spasms,
muscle cramps, severe headaches, degenerative disc disease,
respiratory problems, pneumonia, allergies, a rash on his
neck, and the loss of his teeth. He asserts that his
exposure to Agent Orange caused his wife to have two
miscarriages, and his daughter to have a birth defect at the
base of her spine.
The veteran’s claim that his exposure to Agent Orange caused
his daughter to have a birth defect was addressed by the RO
in a December 1996 rating decision. The veteran has
expressed disagreement with that decision, but the RO has not
yet developed the issue for appeal. In the introduction
section of this decision, above, the Board has referred that
issue to the RO for action.
One of the conditions that the veteran has claimed as related
to herbicide exposure is a rash on his neck. The regulations
allow for presumptive service connection of the following
skin disorders: chloracne or other acneform disease
consistent with chloracne, and porphyria cutanea tarda. See
38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1996). The available
medical records do not provide a diagnosis of the rash on the
veteran’s neck. The veteran should have a VA dermatological
examination to establish the diagnosis of the skin condition
on his neck. That examination will be requested in the
REMAND instructions that follow the decisions on the other
issues in this appeal.
Most of the conditions that the veteran claims were caused by
herbicide exposure are not included in the diseases listed in
the regulation regarding presumptive service connection. In
particular, service connection may not be presumed for
general malaise, nervousness, weakness, fatigue, loss of
appetite, weight loss, insomnia, narcolepsy, diminished sex
drive, diminished memory, diminished concentration, organic
mental disease, back disorders, tingling and numbness in the
upper and lower extremities, muscle spasms, muscle cramps,
severe headaches, degenerative disc disease, respiratory
problems, pneumonia, allergies, the loss of the veteran’s
teeth, or his wife’s miscarriages. See 38 C.F.R.
§§ 3.307(a)(6), 3.309(e) (1997).
Nonetheless, the Board must consider any medical evidence or
opinion that links a disability to herbicide exposure. The
veteran has claimed that he has psychological symptoms and
disorders related to herbicide exposure. That claim is
addressed by a January 1995 psychological evaluation,
performed by Alice G. Moore, Psy.D. In that evaluation, Dr.
Moore provided a diagnosis of “personality change due to
toxic exposure, combined type.” That diagnosis appears to
indicate that Dr. Moore believes that the veteran has
sustained a psychological disorder as a result of exposure to
an herbicide agent. Other mental health professionals who
have examined the veteran, however, have provided different
diagnoses. More evidentiary development is needed to make a
determination on this aspect of the veteran’s claim. The
remand instructions in this case include a new VA psychiatric
examination of the veteran. That examination should include
an opinion from the examining psychiatrist regarding the
relationship between herbicide exposure and any psychological
disorders that the veteran currently has. The Board will
REMAND that portion of the claim, and include the appropriate
instructions in the REMAND that follows the decisions on the
other issues on appeal.
The veteran has not submitted any medical evidence to support
his contentions that the remainder of his claimed conditions
were caused by herbicide exposure. In the absence of medical
evidence of a nexus between those conditions and herbicide
exposure, his claims for service connection for general
malaise, nervousness, weakness, fatigue, loss of appetite,
weight loss, insomnia, narcolepsy, diminished sex drive,
diminished memory, diminished concentration, organic mental
disease, back disorders, tingling and numbness in his upper
and lower extremities, muscle spasms, muscle cramps, severe
headaches, degenerative disc disease, respiratory problems,
pneumonia, allergies, the loss of his teeth, and his wife’s
miscarriages, as a result of Agent Orange exposure are not
well grounded claims, and must be denied.
The Board notes that some of the above conditions could be
elements of a psychological disorder. The veteran has
claimed service connection for a psychological disorder
residual related to Agent Orange exposure, and the Board has
remanded that claim for further development. If a
psychological disorder is subsequently found to be service
connected, the symptoms and manifestations of the disorder
will, of course, be considered part of that service connected
disorder.
Cervical Spine
The veteran is service connected for a cervical spine
disability, described as degenerative disc disease at C3-C4
and C5-C6, and traumatic arthritis. He is seeking a higher
rating for that disability. Disability ratings are based
upon the average impairment of earning capacity as determined
by a schedule for rating disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1996). Separate rating codes
identify the various disabilities. 38 C.F.R. Part 4 (1996).
In determining the current level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records. 38
C.F.R. §§ 4.2, 4.41 (1996). An evaluation of the level of
disability present also includes consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment, and the effect of
pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40,
4.45, 4.59 (1996). Where there is a question as to which of
two ratings shall be applied, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7
(1996).
The veteran’s cervical spine disability is currently rated as
10 percent disabling under Diagnostic Codes 5010 and 5293.
Intervertebral disc syndrome is rated as 0 percent disabling
if it is postoperative and cured, and 10 percent if it is
mild. The rating is 20 percent if the disorder is moderate,
with recurring attacks. If the disorder is severe, with
recurring attacks, but with intermittent relief, a 40 percent
rating is assigned. A 60 percent rating is assigned when the
disorder is pronounced, with persistent symptoms compatible
with sciatic neuropathy, with characteristic pain and
demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased disc,
and with little intermittent relief. 38 C.F.R. § 4.71a,
Diagnostic Code 5293.
Traumatic arthritis is rated based on limitation of motion,
or, if the limitation of motion is noncompensable under the
rating schedule, as 10 percent disabling for each group of
minor joints affected by limitation of motion. 38 C.F.R.
§ 4.71a, Diagnostic Codes 5003, 5010 (1996). Limitation of
motion of the cervical spine is rated as 10 percent disabling
if slight, 20 percent if moderate, and 30 percent if severe.
38 C.F.R. § 4.71a, Diagnostic Code 5290 (1996).
VA outpatient treatment records dated from 1977 through 1997
reflect ongoing treatment of the veteran for degenerative
disc disease of the cervical spine, with neck and back pain.
In February 1979, the veteran reported tingling in his arms
and hands, and pain in his neck. An examiner noted nerve
root irritation secondary to cervical spine arthritis. In
September 1990, a VA orthopedist noted intermittent cervical
muscle spasms , and recorded the range of motion of the
veteran’s cervical spine as 40 degrees of flexion, 30 degrees
of extension, lateral flexion of 35 degrees bilaterally, and
rotation of 70 degrees bilaterally.
On VA examination in January 1994, the veteran reported that
he had constant pain in his back. He reported that prolonged
sitting, standing, or walking intensified the pain. He
stated that if he held his arms in 90 degrees abduction for
more than ten to fifteen seconds, he developed tingling in
his hands and arms up to the elbows. Examination of the
veteran’s cervical spine revealed normal head posture, and a
normal lordotic curve. There was no spinous tenderness or
paravertebral spasm on examination. The ranges of motion of
the cervical spine were 37 degrees of flexion, 16 degrees of
extension, lateral flexion of 29 degrees to the right and 24
degrees to the left, and rotation of 73 degrees to the right
and 43 degrees to the left. A compression test was negative,
and there were no neurological deficits in the upper
extremities. X-rays revealed osteoarthritic changes with
narrowing of the intervertebral spaces from the levels of C3
through C7.
The veteran submitted treatment records from his chiropractic
physician, Ed Barker, D.C. In April 1994, Dr. Barker
reported that the veteran had postural imbalance and cervical
hyperlordosis. The range of motion of the cervical spine was
painful, with moderate to severe restriction. Dr. Barker
noted muscle spasm and motor weakness, as less as numbness,
tingling, and pressure point tenderness. His diagnoses
included cervical disc displacement and compression of the
cervical plexus. A February 1995 examination by Pedro Y.
Chan, D.O., a private physician, revealed a range of motion
of 70 degrees of flexion, 55 degrees of extension, and
lateral flexion of 55 degrees to the right and 45 degrees to
the left. No tenderness of the cervical spine was noted.
The medical records show some variation in limitation of
motion and other manifestations of the veteran’s cervical
spine disorders. Overall, the recent range of motion
findings are most consistent with moderate limitation of
motion of the cervical spine. The veteran has reported
constant pain in his neck and back, as well as numbness and
tingling in his upper extremities. On some occasions,
examining physicians have noted tenderness and muscle spasm;
but other examinations were negative for neurological
findings related to the cervical disc disease. The bulk of
the medical evidence does not confirm the veteran’s reports
of severe and constant neurological effects, but the findings
are sufficient to show moderate symptomatology and
disability. Based on moderate symptoms of degenerative disc
disease, and moderate limitation of motion of the cervical
spine, the most appropriate rating under the schedule for the
veteran’s upper back disability is 20 percent. The
preponderance of the medical evidence is against a higher
rating.
ORDER
A well grounded claim for service connection for Meniere’s
disease not having been submitted, the claim is denied.
Entitlement to service connection for scoliosis of the
thoracic spine is granted.
A well grounded claim for service connection for arthritis of
the back (including thoracic and lumbosacral spine) not
having been submitted, the claim is denied.
A well grounded claim not having been submitted for service
connection for general malaise, nervousness, weakness,
fatigue, loss of appetite, weight loss, insomnia, narcolepsy,
diminished sex drive, diminished memory, diminished
concentration, organic mental disease, back disorders,
tingling and numbness in the upper and lower extremities,
muscle spasms, muscle cramps, severe headaches, degenerative
disc disease, respiratory problems, pneumonia, allergies, the
loss of the veteran’s teeth, and his wife’s miscarriages, all
claimed as residual to Agent Orange exposure, the claim is
denied.
A 20 percent disability rating for a cervical spine
disability is granted, subject to laws and regulations
controlling the disbursement of monetary benefits.
REMAND
Allergies and Respiratory Conditions
The veteran is seeking service connection for allergies and
respiratory conditions. The RO has addressed the veteran’s
claim as a request to reopen a previously denied claim. A
final decision on a claim that has been denied shall be
reopened if new and material evidence with respect to that
claim is presented or secured. 38 U.S.C.A. § 5108 (West
1991). A rating decision becomes final if no notice of
disagreement is filed within one year from the date of
mailing of the rating decision. 38 U.S.C.A. § 7105 (West
1991).
The RO first denied the veteran’s claim for service
connection for disability allergic rhinitis, chronic
sinusitis, and residuals of pneumonia in a September 1977
rating decision, which was mailed to the veteran in October
1977. The veteran wrote to VA in April 1978, asking to amend
his claim to add additional disorders, and providing further
argument to support his claim for service connection for
allergy, residuals of pneumonia, and respiratory problems.
The Board finds that the veteran’s April 1978 correspondence
constituted a timely notice of disagreement with the
September 1977 rating decision denying service connection for
respiratory problems. The RO apparently did not recognize
the veteran’s April 1978 correspondence as a notice of
disagreement, and did not issue a statement of the case. The
Board finds that the veteran appealed the September 1977
rating decision, and that the RO did not take action to
review that appeal. Therefore, the September 1977 decision
did not become final. Consequently, the Board finds that the
RO should address the veteran’s claim not as a request to
reopen a final denied claim, but as a direct claim for
service connection for respiratory problems, taking into
account all of the evidence.
PTSD
The veteran is seeking service connection for PTSD. In the
case of certain chronic diseases, including psychoses,
service connection may be presumed if the disease became
manifest to a degree of 10 percent disabling or more within
one year after separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.307, 3.309 (1996).
PTSD is a psychiatric disorder that arises from exposure to a
psychologically traumatic event, or stressor. For purposes
of service connection, it is recognized that PTSD symptoms
may first become manifest many years after exposure to
stressors during service. Service connection for PTSD
requires medical evidence establishing a clear diagnosis of
PTSD, credible supporting evidence that a claimed stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed
inservice stressor. 38 C.F.R. § 3.304(f) (1996).
Additional evidentiary development is needed to determine
whether service connection for PTSD is warranted. The
veteran’s medical records include VA and private mental
health treatment notes and evaluations. In some instances,
the professionals who examined the veteran diagnosed PTSD; in
others, they made different diagnoses. A VA psychiatric
evaluation should be performed to clarify the diagnosis.
The veteran has described events during service that could
constitute a stressor related to the development of PTSD. He
reported that he helped to clean up human remains after three
men, including two with whom he had trained, were killed in a
Fire Detection Center (FDC) that was destroyed by mortar
rounds. His military records indicate that he served in
Vietnam as an artillery surveyor. Mr. J.E.M. wrote that he
trained and served with the veteran, and he corroborated the
events that the veteran reported. Both the veteran and Mr.
M. identified their unit as the Sixth Battalion, 84th Field
Artillery, with a base camp at Camp Radcliff, in An Khe,
Republic of Vietnam. They reported that the FDC was shelled
on their first night in the field, at a location
approximately twenty kilometers north of Nha Trang. The
veteran’s military records indicate that his tour of duty in
Vietnam began on April 29, 1968. The RO should seek
verification of the reported stressor through military
records. Specifically, they should seek records of the Sixth
Battalion, 84th Field Artillery, based in An Khe, RVN, to
determine whether soldiers in that unit were killed in a
mortar attack on an FDC that occurred in the field, north of
Nha Trang, in April or May of 1968.
Agent Orange Exposure - Skin Disorder
The veteran has reported that he has a chronic rash on his
neck that began during service. A VA dermatological
examination should be performed to determine the diagnosis of
his skin condition.
Agent Orange Exposure – Psychological Disorder
The veteran has claimed that he has psychological symptoms
and disorders related to herbicide exposure. One mental
health professional who has examined the veteran diagnosed
“personality change due to toxic exposure, combined type;”
while other mental health professionals have provided
different diagnoses. In a new VA psychiatric examination of
the veteran, the examining psychiatrist should provide an
opinion regarding the relationship between herbicide exposure
and any psychological disorders that the veteran currently
has.
Migraine Equivalence
In 1994, the veteran submitted a written claim for service
connection for a condition that he described as migraine
equivalence. He wrote that the condition was characterized
by periods of partial blindness. He asserted that the
condition began after VA medical professionals decreased the
strength of headache medication that they had been giving
him.
The veteran did not claim that the migraine equivalence
condition began during service. He did not claim that the
condition was the result of events in service, nor that it
was secondary to a service connected disability. Thus, his
claim was not a claim for compensation based on service
connection, but a claim for benefits for additional
disability claimed to be the result of VA medical treatment.
That type of claim is governed under the provisions of
38 U.S.C.A. § 1151. Where it is determined that there is
additional disability resulting from a disease or injury or
an aggravation of an existing disease or injury suffered as a
result of training, hospitalization, medical or surgical
treatment, or examination, compensation will be payable for
such additional disability. 38 U.S.C.A. § 1151 (West 1991 &
Supp. 1997); 38 C.F.R. § 3.358(a) (1996).
The RO considered the veteran’s migraine equivalence claim
according to the laws and regulations governing service
connection claims. They did not consider the claim under the
provisions of 38 U.S.C.A. § 1151. The Board therefore
REMANDS the claim to the RO, for the RO to consider the claim
under the provisions of 38 U.S.C.A. § 1151.
Accordingly, this case is REMANDED for the following:
1. The RO should readjudicate the
veteran’s claim for service connection
for allergies and respiratory conditions
as a direct claim for service connection,
taking into account all of the evidence,
both old and new.
2. The RO should schedule a VA
psychiatric evaluation of the veteran.
Prior to the examination, the examiner
must review the veteran’s claims file.
The examiner should provide detailed
findings and diagnosis of the veteran’s
current psychiatric condition. In
particular, the examiner should indicate
whether or not the veteran has PTSD, and
should explain the reasons for that
conclusion. In addition, the examiner
should provide an opinion as to the
relationship, if any, between the
veteran’s exposure to herbicides during
service, and any psychological disorders
that the veteran currently has.
3. The RO should schedule a VA
dermatological examination of the
veteran. The examiner should provide
detailed findings and diagnoses. In
particular, the examiner should indicate
whether the veteran has chloracne,
another acneform disease consistent with
chloracne, or porphyria cutanea tarda.
4. The RO should contact the United
States Army and Joint Services
Environmental Support Group (ESG) for
assistance in verifying the stressor
reported by the veteran. Specifically,
the RO should ask ESG to search records
of the Sixth Battalion, 84th Field
Artillery, based in An Khe, RVN, to
determine whether members of that unit
were killed when mortar rounds hit an FDC
located in the field, north of Nha Trang,
in April or May of 1968.
5. The RO should readjudicate the
veteran’s claim for benefits based on
migraine equivalence, evaluating it as a
claim for benefits for additional
disability claimed to have been incurred
as a result of VA treatment. In
readjudicating the claim, the RO should
consider the provisions of 38 U.S.C.A.
§ 1151 and 38 C.F.R. § 3.358.
After the completion of the foregoing development, the RO
should review the case. The veteran and his representative
should be furnished with the rating decision and supplemental
statement of the case, and afforded an opportunity to
respond. Thereafter, the case should be returned to the
Board for appellate consideration, if otherwise in order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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